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CEO's Corner:

FDA Guidance an Opportunity to Get Labeling Right

June 2, 2022

As a promised summer deadline for U.S. Food & Drug Administration guidance on the labeling of plant-based alternatives approaches, dairy farmers and the entire industry are readying for a milestone in the decades-long effort we’ve led to ensuring integrity in marketplace labeling of dairy products. The news could be good for consumers, or it could be insufficient for their needs – the agency has been very tight-lipped in our conversations with them.

But after more than four decades of advocacy on this issue, we at NMPF aren’t getting too worked up about any gossip, whether or not it’s favorable to consumer and dairy interests. Why are we so serene in the midst of the Washington rumor mill? With apologies to an old political truism, “It’s the facts, stupid.” The facts are on our side, and regardless of plant-based marketing whims or FDA’s thus-far history of ambivalence on this issue, facts matter. That’s why we know that, regardless of the details any guidance may contain, we won’t accept anything less than full labeling transparency as we continue to focus on this issue. The problem of nutritional confusion is too significant for consumers and medical professionals to ignore, and labeling integrity is too near and dear to our hearts to accept anything other than a fairer, more transparent marketplace for all.

So, as we wait on FDA, a few things to keep in mind:

• FDA’s own leadership has shown it understands and accepts our core point – that the current Wild West approach to labeling doesn’t work for consumers or a fair marketplace. Current Commissioner Dr. Robert Califf, as well as predecessors Dr. Stephen Hahn and Dr. Scott Gottlieb, have all acknowledged the problem of nutritional confusion, as explained by the American Academy of Pediatrics and other organizations. Ignoring the problem isn’t an option when it’s been repeatedly acknowledged as a problem.
• True, robust enforcement of standards of identity is possible – FDA itself has already demonstrated that, no matter what a plant-based advocate may argue. The examples aren’t as numerous as they would be absent FDA’s practiced ambivalence on the matter, but as recently as 2011 FDA has stood up against mislabeling of plant-based products with dairy terms. The rules themselves have never been the problem – bureaucratic inertia has. FDA has a golden opportunity to boost its own credibility by standing up for transparent and non-misleading labeling.
• An agency’s statement of guidance policy can’t replace a regulation, under the Administrative Procedure Act. Any FDA guidance that’s dissonant with its own standards – and those aren’t changing – isn’t worth the pixels it’s downloaded with. Wiser heads should know that, and for the sake of FDA’s own credibility, they need to prevail.
• The reasons above are only a few of the litany of reasons labeling integrity is essential. Consumer surveys show rampant confusion over the nutritional content of dairy products versus plant-based imitators; the United States is a global outlier in its lax approach to how dairy terms in labeling; and the proper use of dairy terms has deep support among lawmakers in Congress – as it has for generations, as evidenced by the Butter Act, the only Congressionally written standard of identity.
• And finally, one more time, to quote former Commissioner Gottlieb: “An almond doesn’t lactate.”

For those reasons and others, we’re anxiously awaiting the guidance document. With decades of experience and advocacy under our belts, we’re ready for this. FDA has a chance to start afresh and reaffirm its mission to protect consumers – not a bad option for a currently embattled agency. And if, for whatever specious reasons, the guidance isn’t the reaffirmation it needs to be? Then we redouble our efforts, with strengthened resolve and an awareness that facts don’t change, and consumer needs don’t go away.

Our energy on this topic is boundless, and we never shy from the chance to do what’s right. We hope FDA feels the same as we do – for the sake of consumers, it needs to. And with that, we’re looking forward to what the agency has to say.